Estate Planning Definitions
Welcome to our Estate Planning Definitions resource. Select a section below to learn about the estate planning document you might need to protect your family.
Advance Health Care Directive
An Advance Health Care Directive (AHCD) or power of attorney for health care (POAHC) allows your trusted friend or family member to make medical treatment decisions for you if you are unable to communicate your wishes to doctors. Without one, you must have a conservator of your person appointed by the court before decisions can be made on your behalf.
An Advance Health Care Directive not only saves precious decision making time, but it also makes sure that the individual you trust the most has the power to make these most important decisions for you if you are unable to make the decisions on your own.
Revocable Living Trust
Perhaps the most common type of trust is the revocable living trust. As the name implies, revocable trusts are fully revocable at the request of the trust maker. Thus, assets transferred to a revocable trust remain within the control of the trust maker; the trust maker (or trust makers if it is a joint revocable trust) can simply revoke the trust and have the assets returned. Revocable trusts can be excellent vehicles for disability planning, privacy, and probate avoidance.
Durable Power of Attorney
During any period of your life when you are unable to manage your own financial affairs because you lack mental capacity, who will make decisions for you? Who will have the power to sign documents on your behalf, or make sure your bills get paid?
Without a durable power of attorney, someone who is mentally incapacitated must be taken to conservatorship court to have a decision maker named for them by a judge. A carefully written durable power of attorney will allow you to name someone you trust to make decisions for you if you become disabled to the point of no longer being able to make those decisions yourself.
Will (Last Will and Testament)
A Will or a Last Will and Testament is a legal document that tells the probate court how you want your property distributed after you die, and who has the power and responsibility to wrap up your affairs. Through the probate process the court will give the personal representative (executor/rix) of your Will the authority to gather all of your property, pay any remaining creditors, bills, and distribute your remaining property as you specify in your Will.
Because the Will takes effect only after a court determined that it is a valid document, a judge must act before your personal representative can step in and manage your estate.
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), provides that absent a written authorization from the patient, a health care provider or health care clearinghouse cannot disclose medical information to anyone other than the patient or the person appointed under state law to make health care decisions for the patient. The Regulations promulgated under HIPAA specifically authorize a HIPAA Authorization for release of this information to persons other than you or your personal representative. Thus, you should consider creating such an Authorization so that loved ones and others can access this information in addition to the personal representative.
Planning Tip: Consider preparing a HIPAA Authorization for loved ones and others who potentially need access to your medical information if you become disabled. Your estate planning attorney can create such a HIPAA Authorization for you.
A living will or directive to physicians directly informs your doctors that you do not want extraordinary medical measures taken, especially those that would cause you pain or discomfort, if those measures would only prolong the dying process. This document backs up your health care power of attorney. Anyone can deliver this document to your doctors if your agent under your healthcare power of attorney is unavailable to make health care decisions for you.
A pour-over will is a will with a safety net provision that ensures that any property you fail to transfer to your living trust during your life will be transferred to your trust through the probate process. It will transfer all non-trust assets to your trust that are not controlled by beneficiary designations or by ownership with a joint tenant. Your goal is to avoid probate by ensuring that your pour-over will controls nothing. You must transfer all your assets to your trust during your life to avoid probate. Your will is merely your backup to ensure that all your assets are ultimately controlled by your living trust.
Probate administration is the process the court uses to supervise the transfer of assets from a person who has died to the new lawful owners. But first, the court must ensure that all of the deceased person’s debts and taxes are paid.
The process requires appointing a personal representative (executor/rix or administrator), inventorying and appraising assets, accounting for all probate transactions and expenses, notifying the appropriate government agencies, filing final income tax returns, distributing the estates assets and closing the estate. On average, this process takes between 12 to 15 months in California.